United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (of Counsel) Actons Solicitors 2 King Street Nottingham NG1 2AX


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in a Notice of Appeal presented on Mr Barker's behalf against a unanimous decision of an Industrial Tribunal that the Applicant, Mr Barker had been unfairly dismissed but that he was not entitled to any order for the payment of compensation or a basic award.

His complaint had been brought against his former employers Laporte Electronics trading as Micro Image Technology Limited. The essence of the Tribunal's reasoning can be summarised by reference to the Industrial Tribunal decision.

Mr Barker joined the Respondent in May 1985 and rose to be an engineering maintenance supervisor. His employers are part of a large multi-national company, engaged in the chemical industry. At the place where he worked, the company was engaged in the reprocessing of silicon wafers. In the course of that work, the reclamation plant used chemicals which "have the potential to kill or seriously injure a person".

The employers organised a permit to work system so as to ensure that items which required to be dealt with by the engineering department were checked out of the production department and then rechecked back into it after the engineering work had been done. Part of the Appellant's responsibilities was to ensure that the permit to work system was carried out and maintained regularly.

In fact it appears that the system was being abused in the sense that the product was marked going out but instead of a specific date the word "now" was used and when it came back into the production area the word "then" was used, so that there was no specification of the times or dates between which the item of machinery was to be out of use.

There was an accident unrelated to the complaints made against this Applicant on the night shift of 10 and 11 of January 1998. When it was investigated it was discovered that of 50 permits issued for June 1997 half were not properly completed. It was further discovered that 12 months worth of permit books had, in relation to a substantial number, not been correctly completed. The employers took the view that the Applicant had failed to carry out what they regarded as a vital part of his duties. He attended an investigatory interview on 22 January 1998 when he was suspended and a disciplinary hearing on 26 January 1998, when he was dismissed. He exercised his right of appeal which was heard on 12 February 1998. The Tribunal find this: he (the Applicant) made no attempt to explain or defend his inadequate management of the permit to work system; he did however refer to a number of past incidences of Health & Safety breaches which he had recorded in his diary (which he had typed up and attached to his Notice of Application), and some of which he had photographs which he had taken without authority. He did not show that material to Dr Stephenson (the person responsible for holding the appeal), he had not pursued those matters previously up the senior management tree of the Respondent, beyond mentioning them to Mr R Humphrey the technical support manager, Wafer Reclaim Services and to a Mr Bennett without response. Nor had he raised them with the Respondents' Health & Safety Committee or Health & Safety representatives.

The appeal was dismissed as was confirmed by a letter of 24 February 1998.

The Tribunal found that there was no evidence that the original decision taker had taken into account the Applicant's previous record with the Respondents, nor had either the original decision taker or the person conducting the appeal considered whether any alternative sanction might have been appropriate in the circumstances of that case.

Having directed themselves as to the law in a way which cannot be criticised and was not criticised during the course of this appeal, the Employment Tribunal concluded that no reasonable employer would have found that the Applicant's failings in relation to the permit to work system were wilful. They may well have been careless, foolish or grossly negligent and they were certainly misconduct, but therefore the sanction of summary dismissal was outside the range of reasonable responses of a reasonable employer in all the circumstances of this case. But they went on to hold that under s.122 and s.123 of the Legislation, it would be just and equitable to reduce both the basic and compensatory awards by 50%, by reason of his own misconduct, which they describe as culpable and blameworthy.

They then said this:

"Furthermore, we find that his conduct discovered after dismissal, in relation to perceived health and safety breaches would have totally destroyed the respondent's trust and confidence in him as a supervisor. Accordingly, we find that it would be just and equitable to reduce any basic and compensatory award by a further 50% of the original sum which might have been awarded under section 122(2) and section 123(1). We find that there are no exceptional circumstances here to lead us to make different percentage deductions in relation to the basic and compensatory awards ......."

and accordingly, they reduced to nil the amount which otherwise the Applicant would have recovered.

The Notice of Appeal in this case, effectively raises two arguments. The first is the proposition that the Employment Tribunal had concluded that what he did before his dismissal, but which was only discovered afterwards, would totally have destroyed the Respondent's trust and confidence in him as a supervisor. In other words, if they were merely saying that trust and confidence had been destroyed in his capacity to continue to carry out his works as a supervisor, then it did not answer the question as to what a reasonable employer would have done had it been faced with knowledge of these other activities. The fact that he was no longer suitable to be a supervisor, did not mean to say that they had lost trust and confidence in him as an employee, capable of doing non-supervisory work.

Counsel, Mr O'Dempsey, observed that it was a little puzzling that this link which he said was missing should have been overlooked as the Tribunal themselves had limited the trust and confidence to the Applicant as a supervisor. Secondly, it was said the Industrial Tribunal arguably erred in law by making just and equitable reductions, without knowing what the loss was. They could not perform that exercise, without having an idea of the scale of the loss, because they would not know what was just and equitable to award.

We have to say that neither point in our view, has any sensible prospect of success and that the appeal should be dismissed.

In relation to the first point, we regard the essence of the Tribunal's decision as plain, namely that the employer's trust and confidence in him, had been destroyed as a result of his failure to deal with Health & Safety matters in responsible way. This was a factory carrying on processes which are potentially dangerous. The Applicant was as a supervisor responsible for safety matters as were all other employees and it was his duty as such to refer any concerns he had to the Health & Safety Committee through the procedures which were laid down.

It seems to us quite unfair to suggest that the Industrial Tribunal have left out a necessary step in their assessment of the position. As we read the decision, they were saying that the employers would have unquestionably been entitled fairly to dismiss this Applicant had they known about his other failures at the time when they were disciplining him for his failures in relation to the check-in and check-out system.

Secondly, it simply is not sustainable as an argument that a Tribunal cannot carry out a reductive percentage or a reductive process without having first determined what compensation would amount to. It has to be emphasised that the process of reduction is one which can readily take place before quantum has been assessed. That is a position which takes place in the Courts every day of the week, as it does in Employment Tribunals. The percentage reduction on the basis of what the employee has been doing, is not tempered by the effect that such a reduction will have on the ultimate award that he might have received. It is not a process which requires the reduction to be assessed by reference to the amounts involved in the claim.

Accordingly, we reject both arguments which were raised by Mr O'Dempsey. Neither of them is, in our judgment, arguable and therefore the appeal in this case will be dismissed.

The Appellant in this case is in receipt of Legal Aid and we grant Legal Aid taxation of the Appellant's cost.